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Mike Mansfield is a UK leading defence barrister. He has established a reputation as a leading criminal defence lawyer through his successful defence in such cases as the appeal of the Birmingham Six and more recently the IRA prisoners who escaped from Whitemoor prison. He has lately been invovled in the Stephen Lawrence racial murder case in London. Mike Mansfield is also a Trustee for VIVA! Mike Mansfield was interviewed in 1997 by One-Off Productions for their TV documentary, McLibel: Two Worlds Collide.
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I think the courtroom drama is a microcosm of what's going on in the world outside. In other words, on the one hand you have an international multinational corporation, perhaps the biggest food giant in the world, with all the resources represented by one of the top libel silks or barristers in the country. And on the other side, you have two ordinary people committed to certain issues who have had to lay out a lot of money in the sense that they've had to raise a lot of money to cover all their costs and at the same time try to earn a living while all of this is going on in as much as they can. And in the middle of these two is a judge - Mr justice Bell. As far as I understand it, it's his first libel case and he's leaning heavily upon advice from time to time given by Mr Rampton - who's representing McDonalds. And you have an ordinary courtroom. It's not like everybody's front room, but it's not vastly different. It isn't a sort of hallowed Victorian portal as one might imagi ne on the Strand. It's just an ordinary room in which this extremely important battle is being fought out.
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McDonalds will undoubtedly have spent a large amount of money in mounting this case, and we're talking about possible costs at the end of the day, as far as they're concerned, I think are estimated at five million. |
When you're talking about a major corporation defending its image, which is really what it's all about, they will undoubtedly intend to resource it to the maximum. I mean here they are, a multi-billion organisation spending over one billion pounds a year on marketing. So you can imagine the amount of money they're ploughing into this. So they will have a leading barrister, they will have a junior barrister - occasionally some of these corporations have two junior barristers. Those barristers will obviously have an organisation behind them because they have sets of chambers from which they come - they can get access to photocopying and all the other sort of communicative necessities that barristers have.
And then on top of that, you have solicitors, who are another form of lawyer who will be instructing the barristers. They will have offices, they will have machinery as well, and resources, and access to libraries and all the rest of it. And then the solicitors' firm of course have got a number of people who they'll have in court every day - one, or two, or sometimes three available to do it - and I think one of the most important aspects of the case has been that they will be able to produce daily transcripts of the trial - or at least pay for transcripts to be obtained, so that their barristers have, if you like, a running record to which they have reference, and cross-refer, which is extremely important when you're about to cross-examine, or make a speech that you've got all this kind of information, so McDonalds will undoubtedly have spent a large amount of money in mounting this case, and we're talking about possible costs at the end of the day, as far as they're concerned, I think are estimated at five million.
I feel very strongly that this case is a good example of one that should have heard in front of a jury. The rather arrogant assumption that is made by both the judiciary and the bar that, 'Oh well, juries just don't understand complex questions', and that has been part of the thrust of the campaign to abolish juries in the criminal arena, that they just don't understand - whether it's fraud or anything else.
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You can't have a more important issue - it is a global issue that has been taken on here. And, a jury are particularly well-positioned to make factual judgements of this kind.
The idea that one person has to come to a judgement on a mass of this material, I think, is a ludicrous proposition.
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I don't accept that, I think jurors and juries are well-educated and they have a particularly good understanding of what the issues really are about. This isn't really about understanding terribly technical data at the end of the day - it is about a form of honesty, and it is about understanding relationships between, for example, diet and nutrition - it's not a very difficult concept, about deforestation - not a very difficult issue, about conditions in which animals are brought up - not a very difficult issue, about conditions in which workers have to assemble and also try and collectivise their work environment. Those are all very simple issues. There may be difficult surrounding factual matters that they have to assemble, but any jury properly addressed can understand them.
So I think there should have been a jury for this. You can't have a more important issue - it is a global issue that has been taken on here. And, a jury are particularly well-positioned to make factual judgements of this kind, and this difference it would make is that I think that a jury is more in tune with the environment - and I mean that in the broadest sense - than a single judge. The idea that one person has to come to a judgement on a mass of this material, I think, is a ludicrous proposition. I think twelve people, or a jury of a similar number are much the best body.
Additional to the jury and the point about the jury not understanding, one has to appreciate that what is also being said, quite anonymously, is that two ordinary defendants should be able to understand all the evidence, and that one leads into the corollary - where's the Legal Aid? Now, it seems to me, where you've got a case of this kind, due to last for this length of time, which is properly adjudicating major issues, like nutrition and the environment and so on, that these people should have to do it on their own, without any public support when clearly the public, if asked, I'm quite sure, would say that they should have public resources spent on this kind of issue. I think it has to be contrasted with the kind of case where people are needlessly spending money on protecting some public image where they might have had their bubble pricked for some reason or another, whereas here, one has issues of public importance, and no money and no representation over perhaps the longest civil trail there's ever been - and certainly the longest libel trial there's ever been, with the writ being issued five years ago, six years ago - how are these people meant to survive?
I think this trail is about a number of issues, but actually, if you put them all together, whether it's to do with diet, or environment, or animal welfare, or worker welfare, or human welfare, at the end of the day, they all come together into one thing and it is about firstly profit versus environmental resources in the widest sense, and I am implacably opposed to people exploiting the Environment in that widest sense in order to make money. So that is a major issue, make no mistake about it, in the case.
The other one is the ability of those who exploit the environment in this way to contain their exploitation by effectively curtailing the freedom of speech. And what this company has done, and what all major international companies do - never mind governments, 'cause these companies have far more power now - we're taking about global economies - they have more power than Governments, is essentially that if you should raise your head above the parapet and say anything that's remotely critical of these companies, they threaten you with a writ straight away.
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it's a two-pronged attack going on at the moment - a political one through the Government and an Economic one through these multinational corporations. |
And of course the pattern, trail, historical trail of the last ten years is that every time this company issues a writ people begin to tremble. Why? Not because they're not telling the truth, but because they haven't got the courage, they haven't got the resources, they haven't got the patience, and they haven't got the stamina - and these are major organisation and individuals, the BBC, Channel 4, The Guardian, other newspapers, societies and associations like the Vegetarian society and so on, - all have been attacked in this way, and all in the end, have had to back down. And I think that the way in which , therefore Speech, in its widest sense has been curtailed in the sense that you are effectively not allowed to speak. I think that we have to set that aside, alongside what is also going on in the political arena where there is also a form of censorship and a curtailment of Freedom of Movement and Speech in the Public Order Bill and all those other bits of legislation. So it's a two-pronged attack going on at the moment - a political one through the Government and an Economic one through these multinational corporations.
Well, I have to say that I have undying admiration for both of these two. One, I'd like to be in a position where I could say I've devoted two years, three years of my life to one cause in this way, and I feel rather humble that I actually haven't done that. I mean, I've fought a lot of cases, and I've fought them very hard, but none of them have lasted this length of time. And none of them has demanded the undoubted sacrifice that these two have made, and I think that they have done a brilliant and necessary job for all of us. And that's why I have the guilt factor, because it's for all of us namely, they've put on the agenda things that no one else has been prepared to do.
They've taken on the companies that none of the other organisations who have got the resources have been prepared to do, and I think it's an example to the younger generation - and I say that with my hair turning grey very fast! - to the younger generation when there's a bankruptcy, a moral bankruptcy about society at the moment, and there's no real vision and no real leadership. Here are two people providing that and saying, 'Well, actually, we're concerned not for ourselves 'cause even if we win this action, we're going to give the money away'. So they're not doing for themselves - they're doing it for all of us, and they're seeing the globe as one entity that is being attacked in this way. So what they've done, it seems to me, is something that no one else has been prepared to put up with, and we should all be eternally grateful.
In terms of success within the courtroom arena, as opposed to the public arena, it's more difficult 'cause we haven't yet (had a judgement), although by the time this is seen maybe there will be a judgement obviously, and clearly the judgement is going to be important because whichever way it goes, some of the reasoning of the judgement may be extremely important in order to indicate the way forward. But I think that they've done successfully even if in the end the judgement goes against them, because they have forced out into the Litigation arena all sorts of issues that before have been covered up. They've gained disclosure, sometimes by accident of features of McDonalds publicity where for example, they have denied the extent to which they have derived beef from deforested areas in Rainforest areas in the Southern Hemisphere - and that quite clearly has been shown to be misleading to the public through documents that have been disclosed and they've challenged this company with regard to disclosure, they've forced the amendment of the pleading throughout the case by proving some of the connections that they were asserting in their factsheet in the first place, such that McDonald's have had to apply to the court to get amendments to the pleading, so it seems to me to have put McDonalds on to the defensive such that McDonalds are going round the world trying to isolate the effects of this case.
I travel a reasonable amount, and on visits to the United States of America what interests me is that people who are conversant with daily life in America have no idea about this case. In other words, McDonalds have been extremely anxious to ensure that there is a cordon sanitaire put around this case, 'cause they recognise that what has been happening in court - the kind of statements - and some of them are quite ludicrous and laughable statements - coming out of executives of McDonalds and put onto the public platform, and concessions, for example, in some cases where they're having to recognise that statements that haven't been clear in the first place have been derived from the very factsheet which is they're (sic) complaining about, they're actually accepting as reasonable, and it's only when you see how this is turned around through their ability in court to put documents to various people that you see that in fact they've been making a lot of progress.
One of the legal ramifications of this case has been that McDonalds have quite clearly put a cordon sanitaire around the case. They recognise the ramifications of this case - were the truth about what has been said in court to be released onto the world stage, and I suspect one of the strongest motivations for ensuring no transcripts any more as they have withdrawn that agreement, is that they have suddenly recognised that things that have been said in court by their own executives not only are, in many instances, quite laughable, but also, in many instances, they're having (to) - and being forced into recognising - the truth of the material that was put out in the first place in the factsheet.
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... it's about the fact that ordinary people have been able to expose how degraded our environment has become, and how they've been able to educate the public and delude the public into believing that they're eating healthily when they're not. |
I think the ultimate product of what these two have done is, in fact, to have turned the tables over the past two years. And they've forced McDonalds into a recognition and a realisation that it is in fact McDonalds and the values they stand for that are now on trial, and the public have now recognised that there's a very different issue here. It's not about the great image of McDonalds and the magnanimity of McDonalds, it's about the fact that ordinary people have been able to expose how degraded our environment has become, and how they've been able to educate the public and delude the public into believing that they're eating healthily when they're not.
Well, the weight that will be given to the judgement will obviously depend on what side you're on and of course, which way the judgement goes. And in a sense, I don't think the judgement, for me, is the important aspect of this case. No doubt McDonalds will leap upon it, and no doubt that they will try - if it's in their favour - the extent to which people are forced to shut up, in other words the curtailment of the freedom of speech, and I'm warmed by the fact that no doubt there will be a large number of people who are prepared, on the international stage, to go on circulating the material that's come out in this case.
If it goes against McDonalds, again that will be useful in the sense that one goes back to all the people against whom they've issued writs, and who've been forced to back down and apologise, because in a sense they now are owed an apology - each one of them - and if it were possible for them to quantify the effects on their reputations of having to back down and issue apologies that basically were false apologies, then one would like to believe that a series of actions against McDonalds by those people might be launched.
So I think that's another ramification of this judgement. However, in practical terms it seems to be the real benefit of the case is not going to be the judgement because as I've said already I think it is an artificial mechanism that one man passes judgement on all this material - I think that is a human impossibility to come out with a sensible judgement about all this material one way or another. What is much more important is the material itself and that that is then recorded, written up, exposed by the media so the public have access because it's very difficult to see how many members of the public actually got into this tiny little courtroom on the Strand. Even more interesting, just how many journalists, both television journalists and newspaper journalists, have really bothered to follow this case? Other than flippant comments by Auberon Waugh and so on about it being you know, 'The best entertainment'. Other than that it's really had and attracted very little publicityindeed, and yet it is the most important trial this century.
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There's been very, very little attention paid to this trial by the media, both in terms of the news media and newspapers, and news media in terms of television journalists as well, and one suspects it's because they're afraid, and they're put in fear by the threat of writs and a major corporation. And it seems to be that that itself is a travesty of our so-called democratic society that there is this self-censorship and fear and the reason I say that is that this is the most important trial this century and it has received the least amount of coverage |
There's been very, very little attention paid to this trial by the media, both in terms of the news media and newspapers, and news media in terms of television journalists as well, and one suspects it's because they're afraid, and they're put in fear by the threat of writs and a major corporation. And it seems to be that that itself is a travesty of our so-called democratic society that there is this self-censorship and fear and the reason I say that is that this is the most important trial this century and it has received the least amount of coverage.
I think the trial is important because if you just run your finger in a mental way down the list of issues that have been covered in various sections in the trial, whether it's to do with cash crops and indigenous populations and starvation, whether it's to do with rainforests and the environment, whether it's to do with animal welfare, whether it's to do with workers' rights and their welfare and ability to form unions, and whether it's to do with the ultimate issue - in the middle of the trial you had BSE, the British public like everybody else is concerned about whether we've been told the truth - are cows being fed to cows? Well we understand in some parts of the world they are, so there's a real health issue. These are the most important issues, I think, that any of us have to face living our ordinary lives. We should be concerned about it. This trial has it all. That's why it's the most important trial.
The answer to that is that I don't think the counterclaim has turned the trial around. I mean, all the counterclaim is doing is putting the same issues in, but putting the onus on McDonalds to show that the factsheet is false. So I mean, basically, two sides of the same coin. It's an interesting manoeuvre, but I don't think it's turned the trial around because if you think about it, the judge has got to make the same decision whichever way it goes. So if he says 'I come down in favour of McDonalds on.....', and he's got to give judgements on each issue, if he's in your favour on that issue he's against your counterclaim on the same one. And although it has a question of onus on proof, I don't think at the end of the day it makes any practical difference.
In libel proceedings where a defendant - it is said - has made libellous comments, the burden of proof - in a sense - then rests upon the defendant - in this case these two individuals - to prove that each statement they've made that is complained about was derived from what are called 'primary sources' and therefore in a sense, the truth of the statement they have made can be shown or demonstrated in that way.
Now that's an extremely difficult task in many instances. The other, besides document(s), is obviously a witness themselves (???). That's why you have to have - because McDonalds have challenged every single issue - a hundred and eighty witnesses, who've had to be called from across the world to deal with these things. And a way - mechanism - for in a sense, reversing the thread of the case has been for the defendants themselves - and I think it's quite a subtle move to have made - to bring a counterclaim against McDonalds, because McDonalds at the beginning of the case were attempting to put out - and were putting out - documents libelling the two defendants.
So they're saying effectively, 'Well, you libelled us in the document you're putting out', so now the onus of proof is on McDonalds to show that the statements in the factsheet were false - because that's what they were claiming at the beginning of the trial. So you have two sides counter-claiming on the same issues, one having an onus of proof and the other having an onus of proof. So in that sort of legal sense, there's a slight equilibrium - not in the researching, plainly - but in, if you like, the onus of proof within the proceedings.
One of the most insidious features of this case which has been made public - of course one's always suspected it - that multinationals and Governments have a very close identity. In other words, they have very similar interests - particularly a capitalist Government and a capitalist organisation have one thing in common, and that is, particularly the current administration and the one before that which is market economy-led, market force led. So it comes as no surprise that beneath the surface the forces of these two agencies, the forces of the state and the forces of McDonalds are also running alongside each other - and so McDonalds employs ex-police officers - surprise, surprise! - and Special Branch , who now have a rather sort of redundant role in life - now hopefully this peace process in Ireland is under way and the Cold War has - in a strange way - warmed up, and there isn't one any more.
Certainly the security services and MI5 and so on have this superfluous building on Vauxhall bridge costing millions of pounds and nowhere to go - so what do they do? They concentrate on animal rights, and they have a special unit (Special Branch) handing over information which is supposed to be collected for specific purposes, mainly for the purposes of ensuring that there aren't any criminal offences being perpetrated. And what this case has demonstrated has been the criticism that has been made over the last 25 years by politicians and others working in the field of civil liberties, that at the end of the day it isn't about subverting the state, it isn't about criminal offences, it's all about keeping dossiers on everybody and ensuring that those who are seen to be intellectual and political threats are silenced.
And I think it is outrageous that the Special Branch should be handing over personal material which they've no doubt got in all sorts of manner and means - some of them lawful, some of them unlawful - and then of course you have alongside that the Economic League, which itself is an extremely insidious organisation, the object of which is perfectly clear: it's to pick people out who are prepared to protest, who are prepared to speak and ensure that organisations like McDonalds know who they are and make sure that they don't get anywhere near their organisations, or if they're already employed, are isolated and got out. And part of that, of course, is to ensure that there's no trade union movement....McDonalds..'Oh, we want trade unions, it's just that we don't allow them to prosper'.
I think this case demonstrates what we've all feared - that there has been besides an infringement of Freedom of Speech, a complete infringement of Freedom of Movement and Association - because you have demonstrated here what we've always feared - that there is an insidious link between Government and major capital. They both have an identity of interest which is market forces and the market economy. In order to proceed along that twin track the agencies of both the state and of the multinationals are (surprise, surprise!) ex-police officers working for multinationals, and the Special Branch and MI5 working for the state.
Who is at the centre of their interest at the moment now that there's a peace process in Ireland and now there's no longer a Cold War? Animal rights activists. How do they get their information? It's nothing to do with criminal offences, it's all to do with ensuring that you marginalise anyone who is trying to rock the boat - anybody who is trying to raise any kind of human interest and any kind of protest - and it is about protest, and it is about opposition: opposition of the kind that we've seen in Eastern Europe and will not be allowed here - and I think that this case demonstrates beyond peradventure what we've been believing all along - that the special branch is not serving the interests of the community.
Right, I think another manoeuvre that Helen and David have done in this procedure, which intrigues me and I think it's a poignant one, is to join as co-defendants, or attempt to join as co-defendants in the action those people who have infiltrated - on behalf no doubt of the state, the Special Branch, and McDonalds - the activities of London Greenpeace - the organisation that originally put out the factsheet - in order to ascertain who is actually putting it out, and it
does appear that those individuals who have infiltrated have done far more publication and distribution that either of these two individuals, and I think it was the iniquity in a sense, of silence, and the others who've done far more distribution - if that's what McDonalds is genuinely interested in are not joined. (??????)
I think whatever the judgement, ordinary people have already made it very clear in their own statements that, because of the significance and importance of the evidence that has been disclosed and, in a sense, the untruths that have been told about the nature of the relationship between the big organisations and our environment, that people are now feeling that one of the contributions that they can make is to ensure that this information continues to be disseminated. And I think that's important because people at the moment do feel vulnerable and powerless, yet this action has shown that there is a way in which you can exercise power and influence, and there is a contribution you can make and actually it doesn't require a great deal of effort to disseminate information and be seen to be standing by those principals. So I think it's regenerated a from of courage and commitment and a stance upon principal, so I think that's another ramification and importance arising out of this action.
I think the Internet obviously is now becoming the most significant way in which you can immediately communicate something world-wide and it's very clear it can't be stopped. There's no way in which you can bar the Internet, unless you're going to make illegal - and no Government will do that because in fact they're using it just as much as anybody else is - that they're going to ban that facility. And I think the speed with which it is happening is reminiscent of Marshall McCluan and the Global Village - we now do have a Global Village with information immediately accessible, and I think that's the good thing - that concomitant with this action has been this sudden mushrooming of Internet facilities so that people throughout the world can get hold of this information almost with the press of a button and so they can then reproduce it throughout the world.
And I think it's important that this is continued so that individuals on the other side of the world who've heard nothing about this case because it's been - there's been - this attempt by McDonalds to isolate its tentacles so that they aren't felt anywhere else, so that they can overcome that - Dave and Helen can overcome it - and the McInternet (sic) can overcome it by ensuring all this information is obtainable by anybody who wants it.
I think McDonalds would like to stop it and they may threaten all sorts of things. It's difficult to see that they will be able to, it's difficult to see what law they might be able to use in order to stop it. In any event, even if there were some kind of action, I think that the other good thing about this is that McDonalds may be forced to think twice as to whether it is desirable for them to be engaging in this kind of litigation because in fact, I think they should be under no illusion that there will be other Helens and Daves in this world, wherever they are - New Zealand, or Toronto, or London, who will be prepared to take the same stand. So all I can say to McDonalds is, 'If you exercise the same stupidity for a second occasion, then you will be spending more money on litigation than you are on hamburgers'.
I think when a barrister takes on individuals in a personal capacity it is quite a challenge, and I've no doubt, professionally, he will say, 'Well, I've just done a job and really I don't mind. I had to do it, I was paid to do it and so on, and I did it to the best of my ability. And that's....' - well, although he wouldn't use the phrase - 'that's the way the cookie crumbles', if it goes against him. However, I think he can't get away from the fact that were he in fact to lose the judgement in this case, having had the resources that he's got, and having the reputation that he's got, inside - well I don't think he may say it outwardly - he's going to feel a real sense of loss, and he must also understand that others who've been watching the case will wonder what's being going on for two years that at the end of the day with all these resources and his own ability and talent and all the rest of it there's been a judgement (if it is) so heavily weighted against him.
So I think he'd probably need a rest, as no doubt Dave and Helen will need a rest after it. And I think he would have to think carefully about the way forward for himself in this kind of arena. I don't suppose at the end of the day, given his reputation, it will make a lot of difference, because corporations actually will always go on justifying what they've done and they will always go on employing people like Richard Rampton because they will say they will justify what they've done, so I suppose in a sense, there will always be a pool of work for somebody like him, so I don't suppose he needs to worry.
I think there is a very strong argument for the reworking of the libel laws. There's both the question of the level of damages and so on - but that's an issue that hasn't yet arisen, but people have got rather concerned about that - but also there is the concern that many libel cases are really quite frivolous, and one needs to consider whether many of these should occupy the time of the courts.
And then you have the category of case that we have here, which is extremely important and yet doesn't attract public support in terms of resources and money, legal aid and representation, and so therefore I think that's what has to be looked at again, and one may also have to look at the evidential burden that's placed on the defendant because I think it may be exacting too high a standard to say to somebody that they have to justify every jot and tittle of something that they're putting forward, provided they've done what is reasonable to research what it is they have to say, because one can only think in the arena of public debate the kind of things that get said by politicians on a daily basis without any foundation. So it seems to me that we do have to re-look at the whole gamut of law on this.
I think there is an argument for saying that this is no doubt one of the reasons why politicians say some of the things they do say, it is that multinationals should be equated with Government agencies because in a sense they are operating in the same field and, as I've already said, they have an identity of interest and therefore, I think it might be worth considering excluding them from the ability to sue because actually, they should be above it - what are they so concerned about in any event? - they should be above all that, and they should be, rather like Government agencies, prepared to take the 'slings and arrows of outrageous fortune ' - if that's how they see it.
Well, what is interesting from within the legal profession is that there's no 'inside view'. Except amongst close colleagues, it's not a trial that's talked about - it's been forgotten, even if it was noticed in the first place - and again, I think it's interesting because in fact, people tend to get on, especially within the bar with individual lives and individual practices - it's a very individual profession. And I don't think they've recognised the significance of the issues that are being raised or at least if they have, not that it's something that becomes a daily talking point - so interestingly, there is no in-house view of this trial at all one way or the other, for or against.
Oh, there's no question ordinary people should have the right to criticise multinationals, Government agencies, anything that is being done that affects the welfare of their daily lives, and it seems to me that where you have a multinational corporation which has I think, more food outlets than any other food chain in the world, then of course the public have a right to know how that chain operates, and have a right to know what it is they're doing to the environment to get to that position, and they also have a right to speak. I mean, criticism can be good and it can be bad, it doesn't necessarily mean it's going to be adverse.
So criticism in itself... I know the public normally think that criticisms mean adverse criticisms - they don't. It means critique essentially. The public should be in a position to make judgements for themselves because we're dealing with individual welfare, and I must be in a position to decide whether I want - and this is the basic thing when I walk down the High St - do I want to go in there and participate in an organisation which is doing the kind of things that have been exposed in the case? Do I want my children to go into a kind of organisation like that? Now I take strong views about all sorts of things and it seems to me I have the right to make those decisions, and that's all I'm asking to do.
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